People v. Van Diver

• Decision Date: 22 December 1977
• Docket Number: Docket No. 31202
• Citation: 80 Mich.App. 352,263 N.W.2d 370
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry VAN DIVER, Defendant-Appellant. 80 Mich.App. 352, 263 N.W.2d 370
• Court: Court of Appeal of Michigan — District of US

Page 370

263 N.W.2d 370

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry VAN DIVER, Defendant-Appellant.

Docket No. 31202.

80 Mich.App. 352, 263 N.W.2d 370

Court of Appeals of Michigan.

Dec. 22, 1977.

Released for Publication March 14, 1978.

[80 MICHAPP 353] Richard B. Ginsberg, Ann Arbor, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before QUINN, P. J., and V. J. BRENNAN and BOSMAN, ^* JJ.

BOSMAN, Judge.

Defendant was charged with felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277. On April 18, 1975, a jury found defendant guilty as charged and on May 2, 1975, he was sentenced to a term of 2 years and 8 months to 4 years imprisonment. He now appeals by right and we reverse.

The charge in this case arose out of events occurring on September 8, 1974. The complainant Angela Bowen, a 3-year-old girl had been playing with Kimberly Owens, a 7-year-old girl, outside of the apartment complex where they both lived. A man, identified as defendant, approached the girls and told Kimberly Owens that her mother wanted him to take the girls home. Defendant walked both girls inside the apartment building and down the steps to the basement at which point he grabbed them and shoved them inside a dark room. Defendant placed his hand around Kimberly's mouth and nose so that she could not breathe and with his other hand held the complainant. He told both girls to be quiet or he would kill them. The two girls struggled and complainant succeeded in freeing herself from defendant's grasp, kicking the [80 MICHAPP 354] door down, and running into the hallway. Defendant pursued and Kimberly promptly escaped and found her parents.

Defendant was subsequently apprehended. At trial, Kimberly testified that he had not had a knife, gun, or other weapon. Neither child bore any marks of physical injury; however, Kimberly was hysterical for several days after the incident.

Defendant's main contention of error is that he should not have been charged with felonious assault because the use of bare hands does not constitute a deadly weapon within the meaning of the statute. M.C.L.A. § 750.82; M.S.A. § 28.277. This statute provides:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony."

The Michigan Supreme Court has ruled that the statute is not restricted to weapons of the same type and kind enumerated in the statute. People v. Goolsby, 284 Mich. 375, 378-379, 279 N.W. 867, 869 (1938). In determining if a weapon can be classified as dangerous for purposes of the statute, the Court ruled:

"Some weapons carry their dangerous character because so designed and are, when employed, per se, deadly, while other instrumentalities are not dangerous weapons unless turned to such purpose. The test as to the latter is whether the instrumentality was used as a weapon and, when so employed in an assault, dangerous. The character of a dangerous weapon attaches by adoption when the instrumentality is applied to use against another in furtherance of an assault. When the [80 MICHAPP 355] purpose is evidenced by act, and the instrumentality is adapted to accomplishment of the assault and capable of inflicting serious injury, then it is, when so employed, a dangerous weapon." Id. at 378, 279 N.W. at 868-869.

Under this test, this Court has ruled that many items may be dangerous weapons, ¹ including a booted foot. People v. Buford, 69 Mich.App. 27, 244 N.W.2d 351 (1976). We have not had occasion, however, to determine if a bare hand can constitute a dangerous weapon.

Courts in other jurisdictions have ruled on this issue while construing their own statutes and have reached various results some courts have held that a bare hand or fist can never be classified as a dangerous or deadly weapon, ² while others have held or inferred that under the proper circumstances a hand can become a dangerous weapon; however, it is not dangerous per se. ³ It is this Court's opinion that, while these decisions are worth noting, they offer very little guidance in resolving the instant case. Instead, we believe that the answer lies in an examination of Michigan's various laws dealing with assault.

[80 MICHAPP 356] Michigan has at least ten statutes relating to assault upon private persons; among these are "Assault and simple assault", M.C.L.A. § 750.81; M.S.A. § 28.276, and "Assault and infliction of serious injury" (commonly referred to as aggravated assault), M.C.L.A. § 750.81a; M.S.A. § 28.276(1), both misdemeanors, and "Assault with intent to do great bodily harm less than murder", M.C.L.A. § 750.84; M.S.A. § 28.279, and "Assault with intent to commit murder", M.C.L.A. § 750.83; M.S.A. § 28.278, both felonies. None of these four statutes require that the actor perpetrate the assault with a dangerous weapon. Bare hands are sufficient. What distinguishes the misdemeanors, simple assault and aggravated assault, from the felonies, assault with intent to do great bodily harm less than murder and assault with intent to murder, is the actor's intended result. What distinguishes felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277, from simple assault and aggravated assault is the use of a dangerous weapon in the perpetration of the assault.

"The evil, under legislative consideration, was that of assaults, aggravated by use of dangerous weapons and, expressive of such purpose, certain instrumentalities were mentioned, not to the exclusion of other potentially dangerous weapons, but inclusion thereof by the omnibus term 'or other dangerous weapon.' " People v. Goolsby, supra 284 Mich. at page 379, 279 N.W.2d at page 869.

It is this Court's belief that this distinction based on the use of a weapon evidences a legislative intent that bare hands were not to be included as a dangerous weapon. Instead, an assault with bare hands without a specifically intended result is to be treated as one without a weapon and is to be prosecuted as either a simple assault and battery or as an aggravated assault.

[80 MICHAPP 357] If we...